Harbor Plywood Corp. v. Department of Labor and Industries of State of Wash.

• Decision Date: 22 March 1956
• Docket Number: No. 33448,33448
• Citation: 48 Wn.2d 553,295 P.2d 310
• Court: Washington Supreme Court
• Parties: HARBOR PLYWOOD CORPORATION, a corporation, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES OF the STATE OF WASHINGTON, Respondent, Grace G. Ash, Respondent and Cross-Appellant.

Page 553

48 Wn.2d 553

295 P.2d 310

HARBOR PLYWOOD CORPORATION, a corporation, Appellant, v. The DEPARTMENT OF LABOR AND INDUSTRIES OF the STATE OF WASHINGTON, Respondent Grace G. Ash, Respondent and Cross-Appellant.

No. 33448.

Supreme Court of Washington, Department 2.

March 22, 1956.

Donley & Ingram, Aberdeen, for appellant.

Clark Adams, Aberdeen, James J. Solan, Montesano, for Grace G. Ash.

Don Eastvold, Atty. Gen., Haydn H. Hilling, Asst. Atty. Gen., for Department of Labor and Industries.

ROSELLINI, Justice.

On June 14, 1951, Cyril J. Ash, while employed as a plywood-panel patcher by Harbor Plywood Corporation, was struck on the right testicle by the corner of a panel of plywood when a truck load of panels he was inspecting became unbalanced and tipped over. A claim was duly filed with the department of labor and industries, and the supervisor issued an order allowing the claim for the injury complained of to the testicle, but denying responsibility for a carcinoma condition which was found to exist in this testicle, on the ground that the carcinoma pre-existed the injury and was unrelated to it.

Ash appealed from this order to the board of industrial insurance appeals, but died of cancer on September 10, 1952, before a hearing was held. Grace G. Ash, widow of the workman, filed a timely application for a widow's pension with the department of labor and industries. Her application was rejected, and she appealed to the board of industrial insurance appeals, which, after hearings on the merits, reversed the supervisor's order and remanded the claim to the department with directions to allow the widow a pension. The employer, Harbor Plywood Corporation, appealed from this order to the superior court of Grays Harbor county, joining the widow and the department as defendants. A jury was waived, and the court, after reading the record, ruling upon the objections to the evidence and listening to the arguments of counsel, affirmed the order of the board. The employer has appealed from the judgment granting the widow a pension, and the widow has taken a cross-appeal from that portion of the judgment wherein the court refused to award her an attorney's fee against the department.

The only finding of fact to which error is assigned reads as follows:

'That the cancerous condition from which the deceased workman suffered was malignant and must have pre-existed the injury of June 14th, 1951; that medical science presently does not know the cause of cancer; that the industrial injury of June 14th, 1951 caused the workman's cancerous condition to spread from his testicle to other parts of his body; that the death of the workman on September 10th, 1952 and his permanent total disability prior to his death were the result of the spread of his cancerous condition through the lymphatic or circulatory system, to his entire lung fields; that the effect of the industrial injury of June 14th, 1951, was to hasten or accelerate the workman's inevitable total disability and death due to his pre-existing cancerous condition, and that the injury which occurred during the employment must have been more likely than not, a contributing factor to his death, without which the death would not have occurred when it did.'

There is no contention that this finding is unsupported by the evidence, but rather the appellant argues that it is not a true finding of fact, but a conclusion of law. We fail to see the merit in this contention. The finding deals exclusively with questions of fact and is in accord with the medical testimony given by two physicians who had treated Ash extensively, and which was all favorable to the widow's theory. No evidence was offered to rebut their testimony.

The true purport of the appellant's argument seems to be that the doctors' opinions regarding the effect of the appellant's injury upon the carcinoma should be discredited, since it is common knowledge that the cause of cancer is unknown. As the trial court remarked in its memorandum decision, from the fact that the cause of cancer itself is unknown, it does not follow that medical science has ascertained nothing about the disease. The doctors testified that the injury most probably caused the carcinoma to spread, delayed its discovery, and hastened the workman's death. If such opinions were unwarranted by medical knowledge, other witnesses could have been produced to so testify. The trial court was particularly impressed with the credibility of these witnesses, one of whom was a leading cancer specialist in the city of Seattle.

While we have been unable to discover any case in this jurisdiction wherein a claim was based upon an injury which accelerated or aggravated a cancer condition, courts in other jurisdictions have held that if an industrial injury accelerates a cancerous Condition, it is immaterial that death ultimately would have resulted anyway, and have allowed recovery. Woodbury v. Frank B. Arata Fruit Co., 64 Idaho 227, 130 P.2d 870; Russo v. Wright Aeronautical Corp., 137 N.J.L. 346, 60 A.2d 263; Causey v. Kansas City Bridge Co., La.App., 191 So. 730. It is stated in 1 Larson's Workmen's Compensation Law 170, § 12.20:

'Pre-existing disease or infirmity of the employee does not disqualify a claim under the 'arising out of employment' requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. * * *

"Aggravating' the disease is exemplified by cancer cases in which the malignant growth is ruptured or spread by occupational exertions, or in which its development is hastened by strains, impacts or accidents in the course of employment.'

In a long line of cases in this jurisdiction, it has been established that if an injury, within the statutory meaning, lights up or makes active a latent or quiescent infirmity or weakened physical condition occasioned by disease, the resulting disability is to be attributed to the injury and not to the pre-existing physical condition, and it is immaterial whether the infirmity might possibly have resulted in eventual disability or death, even without the injury. Jacobson v. Department of Labor & Industries, 37 Wash.2d 444, 224 P.2d 338, and cited cases. In the Jacobson case, a workman who had been afflicted with schizophrenia became unconscious while cleaning out a tank car with hot water, and...